Order VI Rule 17 C.P.C., seeking amendment of the description of the plaint schedule property by way of insertion of Survey Number and Patta Number. The learned Judge allowed the said amendment by way of the order impugned in the instant revision.=Section 26 of the Specific Relief Act, 1963, we do not find any difficulty to hold that in a suit for specific performance of contract for sale, it is permissible to amend a part of the description of the suit property not only in the plaint but also in the agreement Section 26 clearly says as to when a contract or other instrument can be rectified and provides that when through fraud or a mutual mistake of the parties, the agreement in writing does not express their real intention, it is open to the parties to apply for amendment of the instrument. It provides that when such a situation arises, then- (a) either party or his representative in interest may institute a suit to have the instrument rectified, or (b) the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified.- the amendment was sought only with regard to the description of the schedule of the property in the plaint, but not the description of the property in the suit agreement of sale in the light of the provisions of Section 26 of the Specific Relief Act. It is also to be noted that even for maintaining such application for amendment of description of property in the schedule of agreement, the contingencies as stipulated under Section 26 of the Act shall exist. In the instant case, the above circumstances and the contingencies are conspicuously absent. Therefore, the Court below grossly erred in applying the principles laid down by the Honble Apex Court in the judgment referred to above. Therefore, this Court has absolutely no scintilla of hesitation to hold that the order under challenge cannot be sustained in the eye of law.

THE HONBLE SRI JUSTICE A.V.SESHA SAI      

CIVIL REVISION PETITION No. 3210 of 2011  

14-03-2016

Molli Eswara Rao, S/o. Nookalayya,Aged 39 years, Hindu, Cultivation,r/o.
Jaithavaram (V) in Chidikada (M), Visakhapatnam District...... Petitioner

Kurcha Chandra Rao, S/o. Appalanaidu,  Aged 38 years, Hindu, Cultivation and
Employee, R/o. Jaithavaram (V), Chidikada (M), Visakhapatnam District. .....
Respondent

Counsel for petitioner  :Sri G. Rama Gopal

Counsel for Respondent  :N.A.

<GIST   :

>HEAD NOTE :  

? Cases referred :
1.      AIR 2008 SUPREME COURT 1960      

THE HONBLE SRI JUSTICE A.V.SESHA SAI      

CIVIL REVISION PETITION No. 3210 of 2011  

ORDER:

      This revision filed by the defendant in O.S.No.35 of 2007 on
the file of the Court of Principal Junior Civil Judge, Chodavaram,
challenges the order dated 13.07.2011, allowing I.A.No.273 of 2011
in O.S.No.35 of 2007 filed by the plaintiff/respondent herein under
the provisions of Order VI Rule 17 of the Code of Civil Procedure (for
short C.P.C).
      Heard Sri G. Rama Gopal, learned counsel for the petitioner.
Despite service of notice, none appears for the respondent.
      The respondent herein instituted O.S.No.35 of 2007 for specific
performance of an agreement of sale alleged to have been executed
by the petitioner.  In the said suit, the respondent filed the present
Interlocutory Application under Order VI Rule 17 C.P.C., seeking
amendment of the description of the plaint schedule property by way
of insertion of Survey Number and Patta Number.  The learned Judge
allowed the said amendment by way of the order impugned in the
instant revision.
      It is contended by the learned counsel for the petitioner that
the order impugned is erroneous, contrary to law and opposed to the
very spirit and object of the provisions of Order VI Rule 17 C.P.C;
that in view of the prohibition contained under proviso to Order VI
Rule 17 C.P.C., the present application is not maintainable after
commencement of trial in the absence of due diligence on the part of
the plaintiff; the judgment of the Honble Apex Court in the case of
Puran Ram v. Bhaguram  is not applicable in the facts and
circumstances of the case.
      In the above background, now the issue that emanates for
consideration of this Court is:
      Whether the order under challenge, in the facts and
circumstances of the case, is sustainable and tenable and
whether the same is in accordance with the provisions of
Order VI Rule 17 C.P.C?
      Admittedly, the respondent herein filed the present application
after commencement of trial and according to proviso to Order VI
Rule 17 C.P.C., it is incumbent and obligatory on the part of the
person applying to show that despite exercising due diligence, such
application could not be filed before commencement of trial. In the
affidavit filed in support of the application, this Court does not find
any such foundation laid by the respondent in the said direction and
in the absence of compliance of such a statutory mandate, the
application filed by the respondent cannot be maintained.
      Another significant aspect, which needs to be noted, is that the
Court below for holding in favour of the plaintiff/respondent herein,
placed reliance on the judgment of the Honble Apex Court in the
case of Puran Ram v. Bhaguram.
      According to the learned counsel for the petitioner, the said
judgment of the Honble Apex Court is not applicable to the facts and
circumstances of the instant case.  In the said pronouncement, the
Honble Apex Court while dealing with the provisions of Section 26 of
the Specific Relief Act, 1963 (for short the Act) held in favour of
maintainability of such applications for amendment of schedule.  In
this context, it may be apt to reproduce the relevant paragraphs of
the said judgment, which read thus:
10. Keeping the arguments advanced by the learned
counsel for the parties in mind, let us now consider
whether the prayer for amendment of the plaint and the
agreement, in the facts and circumstances of the case,
could be allowed or not. So far as the prayer for correcting
or rectifying the agreement in respect of a part of the
description of the suit property is concerned, it would be
appropriate to look into the provisions made in Section 26
of the Specific Relief Act, 1963. Chapter 3 of the Specific
Relief Act, 1963 specifically deals with rectification of
instruments. Section 26 provides as to when an instrument
may be rectified and reads as under: -
"26. When instrument may be rectified. (1) When, through
fraud or a mutual mistake of the parties, a contract or
other instrument in writing (not being the articles of
association of a company to which the Companies Act,
1956, applies) does not express their real intention, then-
(a) either party or his representative in interest may
institute a suit to have the instrument rectified; or
(b) the plaintiff may, in any suit in which any right arising
under the instrument is in issue, claim in his pleading that
the instrument be rectified; or
(c) a defendant in any such suit as is referred to in clause
(b), may, in addition to any other defence open to him, ask
for rectification of the instrument.
(2) If, in any suit in which a contract or other instrument is
sought to be rectified under sub-section (1), the court finds
that the instrument, through fraud or mistake, does not
express the real intention of the parties, the court may, in
its discretion, direct rectification of the instrument so as to
express that intention, so far as this can be done without
prejudice to rights acquired by third persons in good faith
and for value.
(3) A contract in writing may first be rectified, and then if
the party claiming rectification has so prayed in his
pleading and the court thinks fit, may be specifically
enforced.
(4) No relief for the rectification of an instrument shall be
granted to any party under this section unless it has been
specifically claimed;
Provided that where a party has not claimed any such relief
in his pleading, the court shall, at any stage of the
proceeding, allow him to amend the pleading on such terms
as may be just for including such claim."
11. After closely examining the provisions made under
Section 26 of the Specific Relief Act, 1963, we do not find
any difficulty to hold that in a suit for specific performance
of contract for sale, it is permissible to amend a part of the
description of the suit property not only in the plaint but
also in the agreement. Section 26 clearly says as to when a
contract or other instrument can be rectified and provides
that when through fraud or a mutual mistake of the
parties, the agreement in writing does not express their real
intention, it is open to the parties to apply for amendment
of the instrument. It provides that when such a situation
arises, then-
(a) either party or his representative in interest may
institute a suit to have the instrument rectified, or
(b) the plaintiff may, in any suit in which any right arising
under the instrument is in issue, claim in his pleading that
the instrument be rectified.
12. A reading of these two conditions made under Section
26 of the Act would amply show that either party may
institute a suit to have the instrument rectified or a party
who has already filed a suit in which any right arising
under the instrument is in issue may claim in his pleading
that the instrument be rectified. So far as the facts of the
present case are concerned, it cannot be doubted that the
main issue in the suit for specific performance of the
contract for sale was relating to the agreement for sale in
which a part of the description of the suit property was
wrongly given by mutual mistake and therefore, needed to
be amended. Section 26, of course, says that it would be
open to a party to institute a suit for correcting the
description of the suit property, but the proviso to Section
26 clearly permits that where a party has not claimed any
such relief in his pleading, the court shall at any stage of
the proceeding allow him to amend the plaint on such
terms as may be just for including such claim. From a plain
reading of the provisions under Section 26 of the Act, there
is no reason why the prayer for amendment of the
agreement to correct a part of the description of the suit
property from Chak No. 3 SSM to Chak No. 3 SLM, later on
converted to Chak No. 3 SWM could not be granted. In our
view, it is only a correction or rectification of a part of the
description of the suit property, which cannot involve either
the question of limitation or the change of nature of suit. In
our view, the suit shall remain a suit for specific
performance of the contract for sale and a separate
independent suit is not needed to be filed when the proviso
to Section 26 itself clearly permits either party to correct or
rectify the description of the suit property not only in the
plaint but also in the agreement itself. So far as the
question of limitation is concerned, the agreement was
entered into on 12th of April, 1991 and the suit, admittedly,
was filed within the period of limitation. Therefore, even if
the amendment of plaint or agreement is allowed, that will
relate back to the filing of the suit which was filed within
the period of limitation. So far as the submission of the
learned counsel for the respondent that the rectification of
the agreement cannot be permitted is concerned, we are of
the view that Section 26(4) of the Act only says that no relief
for rectification of instrument shall be granted unless it is
specifically claimed. However, proviso to Section 26, as
noted herein earlier, makes it clear that when such relief
has not been claimed specifically, the court shall at any
stage of the proceeding allow such party to amend the
pleading as may be thought fit and proper to include such
claim. Therefore, we are not in agreement with the learned
counsel for the respondent that section 26 would stand in
the way of allowing the application for amendment of the
agreement. The views expressed by us find support in a
decision of the Madras High Court in Raipur Manufacturing
Co., Ltd Vs. Joolaganti Venkatasubba RaoVeerasamy & Co  
[AIR 1921 Mad 664], wherein it was held that where in the
course of a suit for damages for breach of contract, the
plaintiff contends that there is a clerical error in the
document embodying the contract, it is not always
necessary that a separate suit should have been brought
for rectification of the document and it is open to the court
in a proper case to allow the plaintiff to amend the plaint
and ask for the necessary rectification. As noted herein
earlier, the learned counsel for the respondent contended
before us that the appellant could not get specific
performance of the contract for sale unless he sued for
rectification of the agreement for sale. We are unable to
accept this contention of the learned counsel for the
respondent for the simple reason that in this case, by filing
the application for amendment in the suit for specific
performance of the contract for sale, the appellant had
sought the rectification of the agreement also. It is sufficient
to observe that it was not necessary for the appellant to file
a separate suit for that purpose as contended by the
learned counsel for the respondent. It is open to the
appellant to claim the relief of rectification of the
instrument in the instant suit. The amendment, in our
view, in the agreement was a formal one and there was no
reason why such amendment could not be allowed.
13. The other ground on which the High Court has refused
to permit the appellant to amend the plaint is that if the
amendment is allowed, the suit shall be converted into a
suit for declaration. We are unable to accept this view of the
High Court. In our view, the suit is a suit for specific
performance of the contract for sale simplicitor and only a
part of the description of the suit property in the agreement
as well as in the plaint was sought to be corrected or
amended by the appellant by filing the application for
amendment of the plaint. If we are permitted to look into
the description of the suit property from the original plaint
as well as from the application for amendment, it would be
clear that the description of the suit property has been kept
intact excepting that instead of Chak No. 3 SSM, Chak No.
3 SLM, later on converted to Chak No. 3 SWM, has been
sought to be replaced. Therefore, it is difficult to conceive
that by such amendment, that is, instead of Chak No.3
SSM, if Chak No.3 SLM, later on converted to SWM is
substituted, either the description of the suit property or
the nature of the suit would change. This is only a change
in a part of the description of the suit property, which was
wrongly described by mutual mistake. Therefore, in our
view, this change in a part of the description of the suit
property in the plaint cannot convert the suit for specific
performance of the contract to a suit for declaration. In any
view of the matter, the relief claimed in the suit remained
the same i.e. a decree for specific performance of the
contract for sale and by amendment, no declaration has
been sought for in respect of the instrument.
      It is to be noted that in the instant case, the amendment was
sought only with regard to the description of the schedule of the
property in the plaint, but not the description of the property in the
suit agreement of sale in the light of the provisions of Section 26 of
the Specific Relief Act.  It is also to be noted that even for
maintaining such application for amendment of description of
property in the schedule of agreement, the contingencies as
stipulated under Section 26 of the Act shall exist.  In the instant
case, the above circumstances and the contingencies are 
conspicuously absent.  Therefore, the Court below grossly erred in
applying the principles laid down by the Honble Apex Court in the
judgment referred to above.  Therefore, this Court has absolutely no
scintilla of hesitation to hold that the order under challenge cannot
be sustained in the eye of law.
      For the aforesaid reasons, the Civil Revision Petition is allowed,
setting aside the order dated 13.07.2011 passed by the Principal
Junior Civil Judge, Chodavaram, in I.A.No.273 of 2011 in O.S.No.35
of 2007.  Consequently,         I.A.No.273 of 2011 is dismissed. As a sequel,
the miscellaneous petitions, if any, shall stand closed. There shall be
no order as to costs.
_________________  
A.V.SESHA SAI, J
Date: 14.03.2016